Qualitative conditions of fraud

Fraud refers to the act of defrauding a large amount of public or private property by fabricating facts or concealing the truth for the purpose of illegal possession.

The object of the crime of fraud is limited to the property of the state, the collective or the individual, and no other illegal interests may be defrauded. Its goal should also exclude loans from financial institutions.

It is generally believed that the basic structure of this crime is:

1. The perpetrator commits fraud for the purpose of illegal possession;

2. The victim has a wrong understanding;

3. The victim disposes of property based on misunderstanding;

4. The actor acquired property;

The victim suffered property losses.

Second, the composition conditions:

1, object element

The object of this crime is the ownership of public and private property. Some criminal activities, although they also use some deception and even pursue some illegal economic interests, are not or are not limited to the ownership of public and private property. So it does not constitute fraud. For example, abducting and selling women and children is a crime of violating personal rights.

2. The object of the crime of fraud is limited to the property of the state, the collective or the individual, and no other illegal interests may be defrauded. Its goal should also exclude loans from financial institutions. Because article 193 of the criminal law has specifically stipulated the crime of loan fraud.

3. Objective factors

Objectively, this crime is manifested in the use of fraud to defraud a large number of public and private property.

(1) First, the perpetrator committed fraud. Formally speaking, fraud includes two kinds, one is to fabricate facts, the other is to conceal the truth, both of which are essentially behaviors that make victims fall into wrong understanding. The content of fraud is to make the victim have a wrong understanding and make the property disposal that the perpetrator wants under certain circumstances. Therefore, whether it is fiction or concealment of past facts, or present facts and future facts, as long as it has the above contents, it is a kind of fraud. If the fraudulent content does not make them dispose of their property, it is not fraudulent fraud. Fraud must reach the point where ordinary people can have a wrong understanding and exaggerate the goods they sell. If it is not beyond the tolerance of society, it is not fraud. There are no restrictions on the means and methods of fraud, which can be either verbal fraud or behavioral fraud (fraud itself can be either an act or an omission, that is, there is an obligation to inform a certain fact, but the failure to fulfill this obligation makes the other party fall into a wrong understanding or continue to fall into a wrong understanding), and it is also fraud for the actor to use this wrong understanding to obtain property. According to the provisions of Article 300 of the Criminal Law, anyone who organizes or uses religious sects or cult organizations or uses superstition to defraud property shall be punished as fraud.

(2) Secondly, fraud makes the other party have a wrong understanding. The misunderstanding of the other party is caused by the fraud of the perpetrator. Even if the other party has some misjudgments, it does not hinder the establishment of fraud. Between fraud and the other party's disposition of property, it is bound to involve the other party's misunderstanding. If the other party disposes of the property due to fraud and does not cause misunderstanding, it is not a crime of fraud. As long as the fraudulent party asks for the person who has the authority or status to dispose of the property, he should not ask for the owner or possessor of the property. The behavior that the actor brings a civil lawsuit to provide false statements and false evidence to make the court make a judgment in favor of him, so as to obtain property is called litigation fraud, but it does not belong to the crime of fraud (for details, please refer to the Reply on How to Apply the Law to Deceive the Civil Judge of the Court to Possess Other People's Property by Forging Evidence issued by the Legal Policy Research Office of the Supreme People's Procuratorate on June 5438+1October 4, 2002).

(3) Thirdly, the establishment of the crime of fraud requires the victim to dispose of his property after falling into a wrong understanding. Property disposition includes disposition behavior and disposition intention, and this requirement is made to distinguish fraud from theft. Disposing of property is manifested as direct delivery of property, or commitment of the actor to obtain property, or commitment to transfer property interests. If the perpetrator commits fraud and makes others give up their property, and the perpetrator picks up the property, he should also be punished as fraud. However, the act of putting a piece of metal similar to a coin into a vending machine to obtain the goods in the vending machine does not constitute a crime of fraud, but only a crime of theft.

(4) Finally, after the victim disposed of the property by fraudulent means, the actor obtained the property, thus damaging the victim's property. According to Article 266 of the Criminal Law, it is a crime to defraud a large amount of public or private property. According to the latest judicial interpretation of 20 10 165438 adopted at the 49th meeting of the 11th supervisory committee of the Supreme People's Procuratorate, the amount of fraud is relatively large, ranging from 3000 yuan to 10000 yuan. If the circumstances of attempted fraud are serious, it shall also be convicted and punished according to law.

(5) In addition, it should be noted that the crime of fraud is not limited to cheating tangible things, but also includes cheating intangible things and property interests. According to the relevant provisions of Article 2l0 of the Criminal Law, it is a crime of fraud to defraud special VAT invoices or other invoices that can be used to defraud tax refund and tax deduction.

4. Main elements

The subject of this crime is the general subject, and any natural person who has reached the legal age of criminal responsibility and has the ability of criminal responsibility can constitute this crime.

5. Subjective factors

Subjectively, this crime is direct and intentional, with the purpose of illegal possession of public and private property.

Three. Determination of crime:

1, and the boundary of lending behavior.

If the borrower is in arrears for a long time for some reason, or fabricates a lie or conceals the truth to defraud money and materials, it can't be repaid at maturity, as long as there is no purpose of illegal possession, no profligacy or deception, and it really means repayment; There are also some people who forge repayment vouchers and lie that they have repaid their debts after they have owed them. This is still a loan dispute and does not constitute fraud.

2, the boundaries of debt evasion due to losses.

If it is indeed a fund-raising enterprise, but because of poor management, loss of debt, going out to avoid debt, or property debt disputes. This is essentially different from fraudsters who abscond with money for the purpose of illegal possession in the name of raising funds to run enterprises.

3, and the boundaries of fraud.

Both use deception, and the latter may also obtain property benefits, which are the same; But the subjective purpose, criminal means, the amount of property and the object of infringement are all different. The crime of swindling and cheating is a swindling and cheating act aimed at defrauding all kinds of illegal interests, pretending to be a state functionary, and damaging the prestige of state organs, social public interests or citizens' legitimate rights and interests. The fraud not only includes property (but not limited to the amount), but also includes work, position, honor, etc., which belongs to the crime of disturbing social management order. Criminals impersonate state functionaries to defraud public and private property, which infringes on property rights and damages the prestige and normal activities of state organs. They are implicated offenders, and should be charged according to the main object and main harmfulness of the act and given a heavier punishment. If the amount of property defrauded is not large, but the prestige of state organs is seriously damaged, it should be punished as the crime of swindling and cheating; Otherwise, it is defined as fraud. If both objects are seriously violated, they are generally treated as fraud according to the principle of a felony. Two kinds of crimes have been committed independently, and if they are not related to each other, they shall be dealt with according to the principle of combined punishment for several crimes.

4. The boundary between this crime and other fraud crimes stipulated in this Law.

The remaining chapters of this law respectively stipulate crimes such as fund-raising fraud, loan fraud, financial bill fraud, letter of credit fraud, credit card fraud, securities fraud, insurance fraud and contract fraud. These fraud crimes are the same as this crime in subjective and objective aspects, but they are different in subject, criminal means, subject elements and objects, which are easy to distinguish. Therefore, this article stipulates that "if there are other provisions in this law, those provisions shall prevail."

Fourth, criminal punishment:

1. Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined;

2. If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined;

3. If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated.

Legal basis:

Article 266 of the Criminal Law of People's Republic of China (PRC). Whoever defrauds public or private property in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated. Where there are other provisions in this Law, such provisions shall prevail.

Article 49 of the Law of People's Republic of China (PRC) on Public Security Administration Punishment: Whoever steals, swindles, robs, robs, extorts or intentionally damages public or private property shall be detained for more than five days and less than ten days, and may also be fined less than 500 yuan; If the circumstances are serious, he shall be detained for more than 10 and less than 15, and may also be fined less than 1000 yuan.

Explanations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud Article 1 Whoever cheats public or private property in an amount of more than 3,000 yuan, 30,000 yuan, 100,000 yuan and 500,000 yuan shall be deemed as "large amount", "huge amount" and "especially huge amount" as stipulated in Article 266 of the Criminal Law respectively.

The higher people's courts and people's procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government may, in combination with the economic and social development of the region, jointly study and determine the specific amount standards implemented in the region within the scope of the amount specified in the preceding paragraph, and report them to the Supreme People's Court and the Supreme People's Procuratorate for the record.

Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud Article 2 Whoever cheats public or private property to the amount specified in Article 1 of this Interpretation may be given a heavier punishment as appropriate in accordance with the provisions of Article 266 of the Criminal Law: (1) Whoever cheats an unspecified majority of people by sending short messages, making phone calls or publishing false information through the Internet, radio and television, newspapers and magazines;

(2) defrauding disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief and medical funds and materials;

(three) fraud in the name of disaster relief fund-raising;

(four) defrauding the disabled, the elderly or the disabled;

(5) Causing the victim to commit suicide, mental disorder or other serious consequences.

If the amount of fraud is close to the standards of "huge amount" and "extremely huge amount" as stipulated in Article 1 of this Interpretation, and it falls into one of the circumstances as stipulated in the preceding paragraph or belongs to the ringleader of a fraud group, it shall be deemed as "other serious circumstances" and "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law respectively.